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Human Trafficking, Smuggling and Slavery

Introduction

It is important to understand the difference between persons who are smuggled and those who are trafficked; in some cases the distinction between a smuggled and trafficked person will be blurred and both definitions could easily be applied. It is important to examine the end situation when the victim is recovered to determine whether someone has been smuggled or trafficked. Smuggling is characterised by illegal entry only and international movement only, either secretly or by deception (whether for profit or otherwise).

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Smuggling

Definition

The UN Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted in 2000 defines human smuggling as "... the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national".

Legislation and Sentencing

Assisting unlawful immigration to a Member State (facilitation) - section 25 of the Immigration Act 1971

Section 25 Immigration Act 1971 creates an offence of assisting unlawful immigration (known as facilitation). The offence was substituted by section 143 Nationality, Immigration and Asylum Act 2002 which came into force on 10 February 2003. This widened and extended the old facilitation provisions and covers any act facilitating a breach of immigration law by a non-EU citizen (including a breach of another Member State's immigration law) and acts covered by the old offence of "harbouring".

Under section 25(1) a person commits an offence if he:

  1. does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union;
  2. knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual; and
  3. knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence is defined broadly enough to encompass both the old offences of assisting illegal entry (whether by smuggling someone in a vehicle or by providing false documents for presentation at a port) or assisting someone to remain by deception (for example by entering into a sham marriage) and other forms of assistance which facilitate a breach of the immigration laws.

In cases where prosecutors are considering a charge of conspiracy to commit section 25(1), the prosecution must prove knowledge and intention by the defendants and not merely "reasonable cause for believing" that the act would facilitate the commission of a breach of Immigration law (Saik [2006] 2 AC 18).

Section 25(2) of the Act defines an immigration law as a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State.

This definition has been clarified and reinforced by the Court of Appeal in the case of Kapoor & Ors [2012] EWCA Crim 435 which held that section 2 Asylum and Immigration (Treatment of Claimants) Act 2004 is not an immigration law for the purposes of section 25(2). Under Section 25(2) an immigration law is a law determining whether a person is lawfully or unlawfully entering, transiting or being in the UK. Section 2 creates an offence of not having an immigration document at a leave or asylum interview and merely controls or regulates the entitlement to be in the UK and therefore cannot be relied upon as the immigration law which has been breached. The Court described the purpose of the section 2 offence as an offence to deter and punish a person who comes to the UK and who has, by the time he presents himself at a leave or asylum interview, divested himself of a passport without reasonable excuse.

Before considering charge then, early consultation with Immigration authorities may be advisable in determining whether the law breached falls into an entitlement to enter, transit or be in the UK or is merely regulatory or administrative in nature. Officers from Immigration authorities have been alerted to name the specific breach on the MG3 when referring cases to the CPS and to note it on the charging report (MG5).

In Kapoor & Ors, the Court expressed surprise that there was no reference to the particular immigration law said to have been breached in the particulars of offence in the indictment, as the defendant is entitled to know which particular law he is being accused of breaching. For the purposes of settling indictments in cases alleging section 25(1) Immigration Act 1971, care is required in selecting the immigration law said to have been breached and consideration should be given to specifying the immigration law in the particulars of offence.

However, in the case of R v Dhall [2013] EWCA Crim 1610 the court dismissed the appellant's appeal against conviction in a case of assisting unlawful immigration even though the prosecution did not set out in the count the particular immigration law in relation to which it was alleged the appellant facilitated breaches.

Where the offence has been committed to assist asylum seekers, as in the case of Kapoor & Ors, but there are difficulties in obtaining evidence of direct (financial) gain to support an offence under section 25A, prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law. In Kapoor some of the appellants were on benefits and yet were able to travel on a number of occasions by air to India during a short period, stay in hotels and re-purchase flight tickets when their boarding passes were handed over to an escort. Even though there was no direct evidence of gain, the jury could have been asked to infer that their circumstances and their agreement to act as they did was for gain. Each case will of course depend on its own circumstances.

Section 25(5) of the Act was replaced by section 30(1) of the UK Borders Act 2007 to confirm that the offence applies to acts committed in the United Kingdom, regardless of the nationality of the perpetrator, as well as acts committed overseas.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

The leading sentencing guide case is R v Le and Stark [1999] 1 Cr. App. R. (S.) 422. This states that the most appropriate penalty for all but the most minor offences of this nature is custody. Aggravating features include repeat offending; committed for financial gain; involving strangers rather than family members; a high degree of planning / sophistication; the number of immigrants involved and the level of involvement of the offender. For guidance on non-commercial facilitation, see R v Panesar [1988] Cr. App. R. (S.) 457. In the case of commercial facilitation, see R v Brown [1997] 1 Cr. App. R. (S.) 112, R v Woop [2002] 2 Cr. App. R. (S.) 65 and R v Akrout [2003] EWCA Crim 291.

Other helpful references can be found in R v Javaherifard and Miller [2005] EWCA Crim 3231 which gives guidance on what is likely and not likely to constitute facilitation of another person's unlawful stay in the UK.

Prosecutors are also alerted to the case of Sternaj & Sternaj v DPP [2011] EWHC 1094 (Admin) - see statutary defences: section 31 of the Immigration and Asylum Act 1999. The appellants were convicted of section 25(1) offences but in dismissing their appeals the Court remarked that in a case such as this where the appellants were registered asylum seekers who facilitated a young child (the son of one of the appellants) using another child's passport, the prosecution might question whether it was in the public interest to prosecute.

In the case of Ali (Nazakat) [2015] EWCA Crim 43 a solicitor who was instrumental in finding brides for non EU clients and making false applications to remain in the UK appealed against his conviction of facilitating breach of immigration law. In dismissing the appeal the Court indicated that to be guilty [of facilitation] the person did not need to complete the predicating offence (the sham marriage ceremony); if prevented at the altar, he would still have committed the offence.

Facilitating entry by asylum seekers to the UK for gain - section 25A Immigration Act 1971

This offence came into force on 10 February 2003.

Under section 25(A) (1) a person commits an offence if he:

  1. knowingly and for gain facilitates the arrival in or the entry into the United Kingdom of an individual, and
  2. knows or has reasonable cause to believe that the individual is an asylum-seeker.

Under section 25A (2) Immigration Act 1971, an "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the UK would be contrary to the UK's obligations under the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or the Human Rights Convention (within the meaning given by that section).

The offence covers any actions done whether inside or outside the UK, regardless of the nationality of the perpetrator. No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants. The offence is aimed at those who, for gain, bring asylum seekers to the UK to enable them to claim asylum. This does not apply to anything done by a person acting on behalf of an organisation, which aims to assist asylum-seekers, and does not charge for its services: section 25A(3) Immigration Act 1971.

Prosecutors are alerted to the case of Kapoor & Ors [2012] EWCA Crim 435 (see section 25(1) guidance) in which there were difficulties in obtaining evidence of direct (financial) gain to support a charge under section 25A. Prosecutors should consider whether there might be sufficient evidence to infer gain in return for assistance in facilitating a breach of immigration law by those who then may go on to (falsely) claim asylum.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment, a fine or both. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that most such cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 would appear to apply equally here.

Assisting entry to the UK in breach of deportation or exclusion order - section 25B Immigration Act 1971

Under section 25(B)(1) a person commits an offence if he:

  1. does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and
  2. knows or has reasonable cause for believing that the act facilitates a breach of the deportation order

In cases where the Secretary of State personally directs that the exclusion from the UK of an individual who is a citizen of the European Union is conducive to the public good, subsection (3) below applies.

Assisting entry / remaining of excluded person - section 25B (3) Immigration Act 1971

Under section 25B (3) a person commits an offence if he:

  1. does an act which assists the individual to arrive in, enter or remain in the UK;
  2. knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain in the UK; and
  3. knows or has reasonable cause for believing that the Secretary of State has personally directed that the individual's exclusion from the UK is conducive to the public good.

The offences cover any actions done whether inside or outside the UK. It is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment, a fine or both. It is also a "lifestyle offence" under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 would appear to apply equally here.

Detention and forfeiture of vehicles etc.

Under section 25C Immigration Act 1971, where a person is convicted on indictment of an offence under sections 25, 25A or 25B, the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence if the convicted person owned, was in possession of or was driving it at the time.

Under section 25D Immigration Act 1971, if a person has been arrested for an offence under sections 25, 25A or 25B, a senior officer or a constable may detain a relevant ship, aircraft or vehicle.

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Offences of Human Trafficking, Slavery and Forced Labour

The Modern Slavery Act 2015 ("the 2015 Act") consolidates existing offences of human trafficking and slavery and encompasses trafficking for all forms of exploitation. It came into force on 31 July 2015.

The Act repeals and replaces offences of human trafficking arising under section 59A Sexual Offences Act 2003 (inserted by section 109 of the Protection of Freedoms Act 2012) and section 4 Asylum and Immigration (Treatment of Claimants) Act 2004. The Act also repeals and replaces the offence of holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour arising under section 71 Coroners and Justice Act 2009.

The new offences arising under the 2015 Act are set out below under respective headings of Human Trafficking and Slavery, Servitude, Forced and Compulsory Labour. For offences that pre-date 31 July 2015, hyper-links to relevant legislation are included. In cases where the offence is a continuing offence (such as slavery or forced labour) and straddles the date of commencement, the case should be prosecuted under the offence in force at that time. This may necessitate a number of offences arising from similar conduct being included in the indictment under the relevant legislation in force at the time.

Human Trafficking

Definition

The Palermo Protocol provides the first internationally recognised definition of human trafficking:

"Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs."

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Legislation

Arranging or facilitating the travel of another person with a view to exploitation - Section 2 Modern Slavery Act 2015
  1. A person commits an offence if the person arranges or facilitates the travel of another person (V) with a view to V being exploited.
  2. It is irrelevant whether the victim consents to the travel (whether V is an adult or child).
  3. A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
  4. A person arranges or a person arranges or facilitates V's travel with a view to V being exploited only if
    1. the person intends to exploit V in any part of the world during or after travel; or
    2. the person knows or ought to know that another person is likely to exploit V in any part of the world during or after travel.
  5. Travel is defined as:
    1. Arriving in, or entering, any country
    2. Departing from any country, or
    3. Travelling within any country.
  6. A person who is a United Kingdom (UK) national commits an offence regardless of where the arranging or facilitating takes place, or where the travel takes place.
  7. A person who is not a UK national commits an offence if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival or entry into, departure from, or travel within the UK.

Section 3 defines the meaning of exploitation for the purposes of section 2. A person is exploited only if one or more of the following apply:

  1. Slavery servitude and forced or compulsory labour, where a person is the victim of an offence under section 1 Modern Slavery Act 2015 (see Slavery, Servitude, Forced and Compulsory Labour below).
  2. Sexual exploitation, which involves the commission of an offence under
    • Section 1(1)(a) of the Protection of Children's Act 1978 (indecent photographs of children), or
    • Part 1 Sexual Offences Act 2003
    which would involve the commission of such an offence if it were done in England and Wales.
  3. Removal of organs in circumstances where a person is encouraged required or expected to do anything which involves the commission of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors).
  4. Securing services etc. by force, threats or deception, where the person is subjected to force, threats or deception designed to induce him or her -
    1. to provide services of any kind,
    2. to provide another person with benefits of any kind, or
    3. to enable another person to acquire benefits of any kind.
  5. Securing services etc. from children and vulnerable persons in circumstances where another person uses or attempts to use the person for a purpose within section (5) (a), (b) or (c), having chosen him or her for that purpose on the grounds that -
    1. he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and
    2. an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose.

Under sections 3(5) and 3(6) "benefits" is defined as any advantage derived by the trafficker, which could include financial gain, profit, personal benefit or privilege as well as state financial assistance.

This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, it is life imprisonment. The offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002. As the offence is likely to lead to a significant sentence on conviction all cases should be tried in the Crown Court.

Section 4 Modern Slavery Act 2015 - Committing an offence with intent to commit an offence under section 2 of the Act

Section 4 creates an offence of committing any offence with the intention to commit an offence of human trafficking under section 2. This includes an offence committed by aiding, abetting, counselling or procuring an offence under section 2. The offence will also capture activity such as supplying false documents to be used to facilitate trafficking. The offence is drawn widely enough to encompass any offence committed by aiding, abetting, counselling or procuring an offence of trafficking.

This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, the maximum sentence is ten years' imprisonment. However, where the offence involves false imprisonment or kidnapping, it is life imprisonment.

For offences of trafficking for sexual exploitation which occurred before 31 July 2015, but after 13 April 2013, the following legislation should be used: Trafficking people for sexual exploitation - section 59A Sexual Offences Act 2003.

For offences of trafficking for sexual exploitation which occurred before 13 April 2013, the following legislation should be used: Trafficking into the UK for sexual exploitation - section 57, 58 and 59 Sexual Offences Act 2003.

For offences of trafficking for all other forms of exploitation (non-sexual exploitation) which occurred before 31 July 2015, the following legislation should be used: Trafficking people for labour and other exploitation - section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AI (ToC) Act) as amended.

In circumstances where the victim was not trafficked, or the trafficking element cannot be proved to the criminal standard, prosecutors should consider the offence of "holding another person in slavery or servitude" or "requiring them to perform forced or compulsory labour" under section 1 Modern Slavery Act 2015 or, if before 31 July 2015, section 71 of the Coroners and Justice Act 2009. See the section below on Slavery, Servitude, Forced or Compulsory Labour.

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Case Management Issues

Many victims take significant risks in giving evidence. Prosecutors should consider the range of measures available to support and protect trafficked victims giving evidence and make appropriate applications to the court.

Achieving Best Evidence (ABE) - Video interviews

The revised edition of Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses (ABE) provides full guidance on videotaped interviews for vulnerable or intimidated witnesses. Good practice has highlighted the importance of having focus on what offences might have been committed when planning the interview with a victim, particularly in cases involving numerous vulnerable victims. Better planning of interviews with victims who have extreme vulnerabilities is advisable, not only for the conduct of the interview but for presentational purposes at court.

Special Measures

Under section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) a trafficked victim who has been subjected to sexual exploitation is deemed automatically to be "intimidated". Section 46 of the Modern Slavery Act 2015 amends the YJCEA to include victims of offences under section 1 and 2 of the Act (victims of forced labour and trafficking for sexual and non-sexual exploitation).

Early Special Measures meetings provide an opportunity for the investigating officer and prosecutor to either meet or speak on the phone, to discuss a victim's needs, their eligibility for special measures and the most appropriate special measure(s).
Appropriate measures may include screening the victim from the defendant, giving evidence through CCTV, providing video recorded evidence in chief or clearing the public gallery. In some instances, it might include not revealing the victim's identity when giving evidence.

For further information see Special Measures, elsewhere in the Legal Guidance.

Victims who wish to return to their home country

Where a victim has chosen to be repatriated to their home country and they do not wish to return to the UK, there is provision for evidence to be given through television link from their country under section 32 Criminal Justice Act 1988; however evidence may not be given without leave of the court. An application should be made 14 days after the defendant pleads not guilty at the Crown Court (Crim PR 18.3) specifying the grounds for the application. In cases where a victim or witness has returned to their home country and is required to return to the UK to give evidence at a criminal trial but is subject to immigration control, Home Office Circular 2/2006 provides guidance on the appropriate procedures.

Reporting Restrictions

Reporting restrictions can be applied for under section 46 of the Youth Justice and Criminal Evidence Act 1999 to protect the identity of the witness. Whilst the media can be useful in raising awareness of human trafficking, media interest in specific cases can be unhelpful during the investigation and prosecution phase. Media coverage of cases can reveal the identity of witnesses and create safety issues both within the UK and the country of origin as national media often pick up the story from international news networks. Be aware though that there can be no guarantee of restricting press reporting in other jurisdictions as there may be no mutual recognition of court orders made in England and Wales.

Anonymity

Where there may be safety concerns for the victim, pseudonyms can be used for witness statements if desired. For further information see Director's Guidance on Witness Anonymity.

Interpreters

Consideration must be given, where appropriate, to issues such as gender, political orientation or affiliation, regional origins and cultural background of the interpreter, and the interpreter should be selected to conform to the reasonable requirements set by the witness, if such preferences are indicated. Arrangements for the selection and engagement of appropriately qualified interpreters can be found in the Revised Agreement on the Arrangements for the Attendance of Interpreters in Investigations and Proceedings within the Criminal Justice System.

Victims of trafficking and slavery are frequently targeted because of their vulnerabilities, such as them being deaf, mute or with learning disabilities. In these cases, prosecutors should consider examination of the witness through an intermediary to assist the witness in giving their evidence at court. They can also provide communication assistance in the investigation stage (s.29 YJCEA). For further information see Special Measures in the Legal Guidance.

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Victims of trafficking

Definition

There is no definitive definition of a trafficked victim. Trafficked victims are identified as those persons who are exploited at the hands of their traffickers and victims of the criminality as defined by the Palermo Protocol. This definition is reflected in UK legislation.

Loss of freedom is a defining feature of trafficking. For example, trafficked victims are often not allowed to leave the premises where they are held or if they do, they are accompanied by a trafficker. Victims suffer frequent and severe abuse, both physical and psychological. Violence and physical harm are the hallmarks of trafficked women, in particular.

From a prosecution perspective it is important to adhere to the standards set out in the Code of Practice for Victims of Crime which places the needs of victims at the heart of the criminal justice system.

Council of Europe Convention on action against Trafficking in Human Beings

The Convention on Action against Trafficking in Human Beings was implemented on 1 April 2009. This introduced a number of provisions to improve the ability to identify victims, refer them to appropriate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery and reflection periods and renewable residence permits to victims.

The National Referral Mechanism is a single framework centred on victim identification and referral to appropriate support. First responders (which may include police, Immigration authorities, local authorities and certain NGOs) can refer all suspected victims of trafficking to a Competent Authority for a decision on whether the individual is a victim of trafficking to be made within 48 hours. A first responder will complete a referral form recording their encounter with a potential victim. Sufficient information will be included to enable a decision on whether the subject has "reasonable grounds" for being treated as a victim of trafficking. A reasonable grounds decision includes "I suspect but cannot prove". General indicators of a potential victim's behaviour, circumstances and responses to questions will assist in the assessment.

A multi-agency Competent Authority is based in the UK Human Trafficking Centre (UKHTC). The UKHTC will act as a central point of contact for all agencies likely to encounter victims (e.g. NGOs, police, Immigration authorities, local authorities). A linked but separate Competent Authority in UK Border Agency will address situations where trafficking is raised as part of an asylum claim or in the context of another immigration process. For general enquiries contact the UKHTC; National Referral Mechanism forms can be found on the Gov.uk website.

Where the competent authority has confirmed "reasonable grounds", victims will be eligible for a reflection period of 45 days, which can be extended in some circumstances, for example where there has been extreme trauma. This is to enable a victim to recover from their immediate physical or psychological trauma before deciding whether to support an investigation / prosecution. However this does not preclude the victim from speaking with law enforcement to provide intelligence or information or make a statement if they wish to assist an investigation.

During the reflection period, further information and evidence will be collected to enable a "conclusive grounds" decision to be made. A conclusive grounds decision is "on a balance of probabilities" there is sufficient information to decide that the person is a victim of trafficking.

Following the reflection period, victims may be eligible for a residence permit, which will be granted for a minimum of one year and is renewable. This will be granted where a victim is co-operating with an investigation or criminal proceedings, or it is deemed necessary owing to their personal circumstances.

Disclosure

In all cases of human trafficking, where the victim has been referred to the competent authority for a "reasonable grounds" decision, the referral form completed by a first responder recording their encounter with the victim may be disclosable to the defence.

The prosecutor must apply the disclosure tests set out in the Code of Practice to the Criminal Procedure and Investigations Act, and disclose the form to the defence if it is capable of undermining the case for the prosecution or of assisting the defence case. The form should be identified by the police on the MG6.

Information on the form might go to the credibility of the victim or other prosecution witnesses. There may be inconsistencies in the victim's initial answers given in the course of preparation of the initial report when compared with what is contained in the victim's statement. Inconsistencies are probably capable of assisting the defence in cross examination
and must be disclosed to the defence.

Cross-examination of the victim on grounds of inducement

There may be benefits to victims in claiming they have been trafficked: they are able to access accommodation and support and are eligible for a (renewable) residence permit to remain in the UK. Prosecuting advocates will need to be alert to cross-examination of the victim at court on the grounds of inducement and spurious claims of being a trafficked victim in order to acquire a residence permit.

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Slavery, Servitude, Forced and Compulsory Labour

Section 1 Modern Slavery Act 2015

  1. A person commits an offence if:
    1. the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
    2. the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
  2. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
  3. In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.
  4. For example, regards may be had -
    1. to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
    2. to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within s. 3(3) to (6) of the Act (for human trafficking for exploitation)
  5. The consent of a person (whether adult or child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude or required to perform forced or compulsory labour.

A person guilty of an offence under this section is liable: on summary conviction, to imprisonment for term not exceeding 12 months or a fine or both; and on conviction on indictment, to imprisonment for life.

In this section, "Human Rights Convention" means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950. Article 4 states that no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour. The definition of each element of the offence is described below.

This offence can be used in cases where the victim has been exploited in accordance with the ECHR definition but was not trafficked, or the trafficking element cannot be proved to the criminal standard. The offence under s. 1 Modern Slavery Act 2015 has been extended to cover all forms of exploitation relevant to human trafficking. This means that prosecutors should consider any work or services provided in circumstances amounting to exploitation within the meaning of s.3 of the Act. This may include, for example, children involved in pickpocketing or begging. However, the circumstances must still be interpreted in accordance with Article 4 ECHR.

For offences of Slavery, Servitude, Forced and Compulsory Labour which occurred before 31 July 2015, the following legislation should be used: Section 71 of the Coroners and Justice Act 2009 (link to relevant legislation)

Exceptions to the offence

Article 4(3) of the ECHR sets out exceptions (below) which are applicable to this offence. For the purpose of this offence the term "forced or compulsory labour" shall not include the following exceptions:

  • any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
  • any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
  • any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
  • any work or service which forms part of normal civic obligations. This might include obligations to conduct free medical examinations or participate in medical emergency service.

Whilst there is a range of pre-existing legislation which could cover behaviour relating to servitude and forced or compulsory labour, such as offences of false imprisonment, fraud, blackmail and assault, this offence allows prosecutors to present the full extent of the behaviour, rather than relying on these offences which may not fully reflect the nature of the offending.

Notwithstanding this, prosecutors should also consider charging specific offences in addition to the offence where appropriate (for example where the person has been physically assaulted while subjected to forced labour).

Elements of the offence

Slavery, servitude and forced or compulsory labour are not specifically defined in the Act. In interpreting the offence therefore, police, prosecutors and the courts will need to have regard to existing case-law on Article 4 ECHR and international conventions to find guidance defining the parameters of each of the terms. A brief synopsis of the terms follows.

Slavery or Servitude

Slavery is described as the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised. In essence, characteristics of ownership need to be present for a state of slavery to exist.

Servitude is a linked but much broader term than slavery. In Siliadin v France [2005] EHRLR 660 (paragraph 123), the ECHR reaffirmed that servitude "prohibits a particularly serious form of denial of freedom. It includes, in addition to the obligation to provide certain services to another, the obligation on the "serf" to live on the other's property and the impossibility of changing his status". The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased, though she was allowed out on her own with permission of her employers. The Court unanimously held that there has been a violation of Article 4 of the Convention.

Forced or compulsory labour

The ECHR, in the case of Van der Mussele 8919/80, affirmed that the International Labour Organisation (ILO) conventions were the starting point for interpreting Article 4. The conventions defined forced or compulsory labour as being "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily".

Domestic case law

The case of William Connors and others [2013] EWCA Crim 324 offers some further guidance on the distinction between these 3 elements. This case involved a family who, cajoled, bullied and through deception, recruited vulnerable men to work for them. The men worked long hours in very poor conditions 7 days a week, whilst being subjected to violence, threats and abuse. A manifestation of this control was that many of the victims were deprived of the will to leave; others were too demoralised to do so. All five defendants were convicted of a single count of conspiracy to require a person to perform forced or compulsory labour. During the course of the trial, the judge directed the jury to acquit the defendants of conspiracy to hold a person in slavery or servitude. The trial judge had commented that in order for servitude to be established, a court must find that it was impossible for the workers to change their status.

Reference is also made to the case of Khan, Khan and Khan 2010 [EWCA Crim. 2880] which concerns trafficking for labour exploitation, but nevertheless provides some further useful guidelines on forced labour.(See Sentencing Guidelines below for further detail).

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Evidential considerations

Whether there is evidence that a person was subject to servitude or forced or compulsory labour will depend on the circumstances of the individual case. However, there are a number of factors which may, depending on the circumstances, indicate that an individual might be held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):

  • violence or threats of violence by the employer or the employer's representative;
  • threats against the worker's family;
  • threats to expose the worker to the authorities, for example because of the worker's immigration status or offences they may have committed in the past;
  • the person's documents, such as a passports or other identification, being withheld by the employer;
  • restriction of movement;
  • debt bondage;
  • withholding of wages.

Other factors that may be indicators of forced labour include (but are not limited to):

  • the worker being given no information, or false information, about the law and their employment rights;
  • excessive working hours being imposed by the employer;
  • hazardous working conditions being imposed by the employer;
  • unwarranted and perhaps unexplained deductions from wages;
  • the employer not paying the full tax or national insurance contributions for the worker;
  • the absence of any formal or implied contract of employment;
  • poor accommodation provided by the employer;
  • misleading information having been given about the nature of the employment;
  • the person being isolated from contact with others;
  • money having been exchanged with other employers/traffickers etc. for the person's services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.

These factors have been further supplemented by s. 1(3), (4) and (5) of the Modern Slavery Act 2015 which advise that regard may be had to all the circumstances when determining whether a person is a victim of slavery servitude or forced labour. This can include their age, family relationship and any mental or physical illness which may make the person more vulnerable.

In practice, conditions of servitude and forced labour often involve physical and sexual assaults, restriction of liberty or violence. However, in establishing that a person was held in servitude or required to undertake forced labour does not require the prosecution to prove actual physical force was used or that the victim was physically detained or imprisoned. There may be situations where no physical violence is used or there are no restrictions on movement, but psychological or coercive means are used to effect control, including confiscating the victim's passport, or keeping them in isolation. Requiring someone to work long hours with few breaks and in poor conditions which are contrary to human dignity might reflect the circumstances in which exploited victims are compelled to work, where they are deprived of essential needs and subject to humiliation, threats and insults.

Accommodation may have been made a condition of employment, for which a high rent is paid, comparative to earnings, and which creates a debt bondage relationship. The victim may be told that if they leave the accommodation they will lose their employment or have to continue to pay for accommodation. Whilst they may be physically free to leave, they are effectively a prisoner of their circumstances.

The CPS has signed a Joint Working Agreement between the Association of Chief Police Officers, the UK Border Agency and the Gangmasters Licensing Authority outlining best practice for investigation of forced labour and trafficking for forced labour offences.

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Case Management

Developing knowledge and experience in prosecuting cases for forced labour and slavery offences has identified examples of good practice which prosecutors may wish to consider when dealing with similar cases.

The indictment
  • Decision whether to charge offences of servitude or forced labour: In Siliadin v France (2006) it was determined that, in order for servitude to be established, a court must find that it was impossible for the workers to change their status. In Connors (x4) and R [2013] the judge considered that this element could not be established as he didn't believe that it was impossible for them to leave. The issue of establishing the impossibility of changing status is one that can arise and in some cases it has led to judge's ruling that the case should not go to the jury. Prosecutors should consider including the fall back offence of forced labour in these circumstances.
  • Charging conspiracy: in recent cases a number of defendants have been charged with "requiring vulnerable victims to perform forced labour" but, where it could not be established that one person had controlled a single victim, offences of conspiracy have been charged rather than the substantive offences. Whilst there had been concerns around establishing group activity as the defendants had taken different roles, if substantive offences had been charged a number of defendants would have been lost. Providing minor defendants are excluded, there are advantages to charging conspiracy.
Bad character evidence

In a case involving forced labour, the judge ruled that bad character evidence from witnesses who had worked for / been exploited by the defendants at a time that pre-dated the indictment period (and pre-dated the enactment of the legislation) could not be admitted. Prosecutors should consider, on its merits in each case, an application to admit such evidence.

Support for victims

Victims and witnesses in these cases are likely to be extremely vulnerable and this can present challenges in managing and supporting them before and during the trial. Often they are deliberately targeted for their vulnerabilities; they may be homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they effectively become institutionalised. In such cases, it is good practice for the victims to be removed to a private reception centre, where their needs can be assessed and referral made to appropriate support agencies. In such cases, the police have worked with social services for the co-ordination of support services to provide on-going accommodation and retain regular contact leading up to trial. Guidance is available to investigating officers from the UK Human Trafficking Centre and the National Crime Agency in the "Best Practice Guide to Investigating Labour Exploitation." The CPS should liaise with the police in advance of the trial to agree costs of accommodation and transport for the duration of the trial.

Good practice has been to limit the number of third party contacts with the victims, to help them and reduce defence cross examination intended to undermine the victim's credibility by allegations of coaching.

Consideration should be given to the use of expert evidence such as medical evidence and psychologists - particularly where there are extreme vulnerabilities. It is important to select an expert whose expertise is tailored to the particular condition and needs of the victim, is capable of providing support to the victim as well as giving evidence, and advising advocates in understanding how best to communicate with the victim.

In some cases the use of intermediaries and ground rule hearings should be considered (see guidance under Special Measures).

If a victim of forced labour or slavery is also a suspect in a criminal offence, please refer to the section below on Suspects in a criminal case who might be victims of trafficking or slavery.

Digital presentation of evidence

Prosecutors should consider electronic case presentation in these cases to present exhibits and enable vulnerable witnesses to give evidence in court via video link to reduce their trauma and provide them with added protection. Digital Evidence Screens should also allow for CCTV footage and other video and audio evidence to be presented easily in court.

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Alternative Offences

Conspiracy to traffic

A "conspiracy to traffic" may involve the commission of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales. This situation is covered by section 1A of the Criminal Law Act 1977 which provides that where (a) that act or event would be an offence by the law of that place and (b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. Prosecutors should note, however, that by virtue of section 4(5) of the same Act, the prior consent of the Attorney General is required to prosecute offences to which Section 1A applies.

For further guidance on obtaining the consent of the Law Officers prosecutors should refer to legal guidance on Consents to Prosecute.

Participating in the criminal activities of an organised crime group

Section 45 of the Serious Crime Act 2015 introduced an offence of "participating in the criminal activities of an organised crime group (OCG)". The offence came into force on 3 May 2015 and is intended to target:

  • those who head criminal organisations and plan, coordinate and manage criminal activities but do not always directly participate in the commission of the final criminal acts; and
  • members of the group and associates who participate in activities such as the provision of materials, services, infrastructure and information that contributes to the criminality and capability of the OCG.

A person participates in the criminal activities of an OCG if they take part in any activities that they know or reasonably suspect are criminal activities of an OCG, or that they will help an OCG to carry on criminal activities. This includes a deliberate omission which helps an OCG. Prosecutors should also consider offences of money laundering under POCA 2002.

The offence is triable on indictment only and subject to a maximum penalty of five years' imprisonment, a fine, or both.

Fraud by abuse of position

Section 4 Fraud Act 2006 creates an offence of fraud by abuse of position. In such cases the defendant will occupy a position in which he was expected to safeguard, or not to act against, the financial interests of another person; they abused that position dishonestly intending by that abuse to make a gain/cause a loss. In cases of labour exploitation which may not meet the threshold required for an offence under section 1 or 2 of the Modern Slavery Act, for example where the exploitation is one of terms and conditions of employment only, and where no other indicators are present or harm is caused to the victim, this offence may be considered.

In R v Valujevs and Mezals [2014] EWCA Crim 2888 the defendants were accused of defrauding migrants who had travelled to the UK voluntarily, and had signed up under the promise of well-paid work. The workers found that their accommodation was a condition of their being given work for which they paid excessive rent, earnings were withheld and financial penalties were imposed. The defendants used fear and debt to exploit the agricultural workers. They were indicted with fraud by abuse of position contrary to sections 1 and 4 of the Fraud Act 2006. It was contended that the defendants, who were gangmasters were in a position where they could be expected to have safeguarded the financial interests of the workers or not act against those interests.

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Alternative Strategies

Evidence gathered during an investigation into trafficking or forced labour, such as surveillance or financial enquiries may reveal other criminality which can support offences instead of, or in addition to offences of slavery or forced labour or trafficking. Other disruptive tactics and strategies might include consideration of benefit offences, money laundering offences (POCA), mortgage, benefits or other fraud, tax offences, Gangmasters Licensing Act regulatory offences, or inchoate offences. These disruptive tactics can lead to consideration of ancillary orders including restraint and confiscation, serious crime prevention orders, financial reporting orders or director's disqualification orders.

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Sentencing

Sentencing guidelines have been included under the relevant statutory offences, including relevant leading sentencing guide cases. For further cases referred to the Court of Appeal which provide guidelines on sentencing and reflect the degree of coercion, force and violence used in the exploitation of their victims, please refer to Knowledge Hub on sentencing guidelines.

Deportation

Procedures in relation to deportation are dealt with in Sentencing - Ancillary Orders, elsewhere in the Legal Guidance.

Compensation

Prosecutors must consider applying for compensation on conviction. Victims of trafficking and slavery have effectively been used as slaves while their traffickers and exploiters have benefited from their exploitation. Further guidance on compensation can be found in Sentencing - Ancillary Orders.

Slavery and Trafficking Reparation Orders

Section 8 Modern Slavery Act 2015 introduces Reparation Orders against defendants convicted of an offence under sections 1, 2 or 4 of the Act and where a Confiscation Order is made. A Reparation Order requires the defendant to pay compensation to the victim for any harm resulting from the offence, but must not be made if a compensation order has been made under s. 130 Powers of Criminal Courts Act.

Proceeds of Crime

Section 7 of the Modern Slavery Act 2015 extends the offences classed as "lifestyle offences" to section 1 and 2 of the Act (slavery and trafficking) and as such, the court may use its powers under the Proceeds of Crime Act 2002 to restrain and confiscate the value of a defendant's criminal assets. In these cases, the court assumes that all assets acquired in the previous six years are the proceeds of crime and are available to be confiscated. Further information on the Proceeds of Crime is available elsewhere in the Legal Guidance.

Forfeiture and detention of vehicles, ship or aircraft - Sections 11 and 12 of the Modern Slavery Act 2015

Forfeiture

If a person is convicted on indictment of an offence under section 2 of the Modern Slavery Act 2015 (human trafficking), the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence, as detailed under section 11 of the 2015 Act.

Detention

Section 12 of the Modern Slavery Act 2015 enables a constable, or a senior immigration officer, to detain a vehicle, ship or aircraft of a person arrested for an offence under section 2 of the 2015 Act (human trafficking) if there are reasonable grounds to believe that an order for forfeiture could be made under section 11 of the Act.

Slavery and Trafficking Prevention Orders and Risk Orders

These are civil orders introduced under secions 14, 15 and 23 of the Modern Slavery Act 2015. Both types of orders require evidence to the criminal standard (similar to existing sexual harm prevention orders and risk orders). They are retrospective in terms of criminal conduct; therefore information or evidence before the date on which they came into force (31 July 2015) can be relied upon. Examples of Prevention and Risk Orders which have been granted can be found in the Knowledge Hub.

It is advised that prosecutors provide advice to the police before seeking a Prevention or Risk Order:

  • to establish whether the evidence might otherwise support a criminal offence; and
  • to ensure the activities described are capable of being prosecuted in event of breach.

In the case of both types of Orders, an interim Order may be applied for where a main application has not yet been determined, to prohibit the defendant from doing anything described in the Order.

A defendant may appeal to the Crown Court against the making of either an STPO or STRO, or an interim Order.

Slavery and Trafficking Prevention Orders (STPOs) were introduced under sections 14 and 15 of the Modern Slavery Act 2015. An Order can only be made if a defendant has been convicted of a trafficking or slavery offence, the court is satisfied that there is a risk the defendant may commit further offences and it is necessary to protect others from harm. Breach of a STPO is punishable with up to 5 years' imprisonment. An Order can be made in one of the following ways:

  1. by the court on conviction, as part of the sentence, to protect the public by preventing or restricting a defendant's activities, e.g. travel to specified countries, arranging travel of anyone other than themselves or a family member, and requiring notification of name and address to the police. Evidence for the offences on which each defendant is convicted is likely to support the application, together with previous convictions and assessment of risk contained within the pre-sentence report. No application is necessary for the court to make an STPO on conviction although the prosecutor may wish to invite the court to consider making an order in appropriate cases.
  2. by a magistrates' court on application by the police, National Crime Agency (NCA) or Immigration Officer (IO) where there is a risk that a defendant may commit a trafficking or slavery offence. The court must be satisfied that the defendant has acted in a way to demonstrate that risk and is necessary to protect others from harm by prohibiting the defendant from doing anything described in the order. The defendant must have been convicted of a trafficking offence in the UK or convicted or cautioned in respect of equivalent offences overseas.

Slavery and Trafficking Risk Orders (STROs) were introduced under s.23 of the Modern Slavery Act 2015. An Order can be made if a defendant has not been convicted of a trafficking or slavery offence but who is nevertheless thought to pose a risk of harm and it is necessary to protect others, The court must be satisfied that the defendant has acted in a way which means that there is a risk that a trafficking or slavery offence will be committed. An Order can be made by a magistrates' court on application by the police, NCA or IO and can prohibit the defendant from doing anything described in the order necessary to protect others from harm likely to occur. Breach of a STRO is punishable with up to 5 years' imprisonment.

When considering the terms of the Order the following should be considered:

  • would the proposed restrictions minimise the risk of harm to the public or to any particular members of the public?
  • are the restrictions proportionate?
  • can they be policed effectively?

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Children

Child trafficking /exploitation / slavery and forced labour

Child trafficking is the practice of transporting children into, within and out of the UK or any other country for the purposes of exploitation. The exploitation can be varied and include:

  • domestic servitude;
  • labour exploitation;
  • criminal activity (e.g. cannabis cultivation, petty street crime, illegal street trade, etc.);
  • sexual exploitation (brothels, closed community, for child abuse images);
  • application of residence;
  • benefit fraud;
  • forced begging;
  • illegal adoption; and
  • sham marriage.

Where there is an arrangement made to travel, or to facilitate travel with a view to child exploitation, section 2 of the Modern Slavery Act 2015 should be used. In these circumstances, regard should be had to the victim's age in determining their vulnerability.

If the victim states they are a child, they should be viewed as such until their age can be verified by identification or an independent age assessment carried out by the local authority or a court determination. Section 51 Modern Slavery Act 2015 provides for presumption about age. Until an assessment is made of the person's age by the local authority, there is an assumption that the person is under 18.

Child exploitation

In cases where there is no evidence of trafficking, but there is non-sexual exploitation, prosecutors should consider charging under section 1 of the Modern Slavery Act 2015 (slavery, servitude, forced or compulsory labour). The consent to any of the acts of exploitation does not preclude a determination that the child is being held in slavery or forced labour.

In determining whether a child is held in slavery or forced labour, regard may be had to all of the circumstances, for example, any work or services which constitute exploitation described in section 3 Modern Slavery Act (for human trafficking) can be taken into account. The vulnerability of the child should also be considered, for example the fact that they are a child, their family relationships and any mental or physical illness or disability. It was Parliament's intention that the breadth of this offence will cover wider exploitation, particularly in relation to child victims, who may be forced to beg or pickpocket.

Where the evidence of exploitation does not reach the thresholds required for these offences, other legislation should be considered. Children can be exploited, for example, through forced begging. In addition to a safeguarding response, prosecutors should consider offences under the Children and Young Persons Act 1933 of cruelty to persons under sixteen (section 1), as well as the specific offence of causing or allowing persons under sixteen to be used for begging under section 4 of the Act.

If exploitation of a child involves benefit fraud and trafficking for exploitation could not be evidenced, offences under the Social Security Administration Act 1992, the Fraud Act 2006 and the Theft Act 1978 could be considered.

Where a child has been inappropriately removed from their family and held elsewhere, depending on the facts of the individual case, offences of child abduction (sections 1 and 2 of the Child Abduction Act 1984), false imprisonment or kidnapping may be appropriate.

Where there is no evidence of movement (for trafficking) for child sexual exploitation, there are a wide range of offences to tackle sexual exploitation of children under the Sexual Offences Act 2003. Attempts to shoehorn conduct into related offences of human trafficking or slavery can sometimes derail cases, particularly in cases of child sexual exploitation. Although the trafficking offences can be used they are not necessarily central to the case. Other alternative serious sexual offences involving the exploitation of children may be more accurate to actual offending and be easier to explain - particularly to juries. These offences allow for substantial penalties. See Child Abuse and Sexual Offences.

Child trafficking and exploitation is often accompanied by various types of control such as violence, the threat of violence, sexual abuse, alcohol and drug abuse, emotional abuse, manipulation through cultural practices and imprisonment to suppress victims and ensure their compliance. For that reason, victims may not fully cooperate with an investigation or prosecution for fear of reprisals. Offenders may also attempt to abduct or coerce the child whilst criminal proceedings are on-going and while the child is being cared for by the local authority.

Children are also exploited by committing criminal acts on behalf of their trafficker / exploiter. Examples include cannabis cultivation, organised street crime and begging. Where it is found that the child committed an offence as a direct result of their situation, prosecutors should follow the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery and consider the statutory defence for slavery or trafficking victims.

Modern Slavery and Drug offences

Offending through "County Lines" is a national issue involving the exploitation of vulnerable children and adults by violent gang members in order to move and sell crack and heroin across the country, often associated with city-based organised crime gangs.

The victims are often children, aged 14 to 17 years, who are groomed with money, gifts or through relationships and forced to carry out day to day dealing. Children as young as 11 years of age have been reported as being recruited. Violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.

Prosecutors are encouraged to consider all available charges when considering a prosecution in connection with County Lines offending, including the Modern Slavery Act in circumstances where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a Modern Slavery Act offence.

In such cases, victims should be referred through the NRM to establish their trafficking status. Where there may be consideration of charge and prosecution of vulnerable children or adults, prosecutors should consider applying the statutory defence or CPS policy on the non-prosecution of suspects who may be victims of trafficking.

However, prosecutors should also be alive to the fact that, if a person, by joining an illegal organisation or a similar group of people with criminal objectives and coercive methods, voluntarily exposes and submits himself to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid: R v Fitzpatrick [1977] N.I.L.R. 20.

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Statutory defence for slavery or trafficking victims who commit an offence

Section 45 of the Modern Slavery Act 2015 introduces a defence for victims who are compelled to commit criminal offences. This came into force on 31 July 2015; for offences committed by victims before this date, prosecutors should refer to the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery.

Under section 45

  1. A person is not guilty of an offence if -
    1. the person is aged 18 or over when the person does the act which constitutes the offence;
    2. the person does that act because they were compelled to do it;
    3. the compulsion is attributable to slavery or relevant exploitation, and
    4. a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act.
  2. A person may be compelled to do something by another person or by the person's circumstances.
  3. Compulsion is attributable to slavery or to relevant exploitation only if -
    1. it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
    2. it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
  4. A person is not guilty of an offence if -
    1. the person is under the age of 18 when the person does the act which constitutes the offence,
    2. the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
    3. a reasonable person in the same situation and having the person's relevant characteristics would do that act.
  5. For the purposes of this section -
    • "relevant characteristics" mean age, sex and any physical or mental illness or disability;
    • "relevant exploitation" is exploitation (within the meaning of section 3) that is attributable to the exploited person being or having been, a victim of human trafficking.
  6. In this section references to an act include an omission.
  7. Subsections (1) and (4) do not apply to an offence listed in Schedule 4 (which includes serious sexual or violent offences).

The statutory defence applies only to criminal offences committed on or after 31 July 2015 and will operate in parallel to CPS guidance on suspects who might be trafficked victims.

How will it apply?

Where an adult suspect is apprehended for committing a criminal offence and it is clear from their circumstances that they are a victim of trafficking or slavery, the offence has been committed as a direct consequence of their situation and they were compelled to commit it, the police or Immigration Officer may decide not to arrest but to remove them to a place of safety. In the case of a suspect under 18, it is irrelevant whether they were compelled to commit the offence.

In cases where the suspect is arrested for a minor criminal offence and there is evidence to show that they may be a victim of trafficking, if they are an adult and agree to a referral, the police can refer them through the National Referral Mechanism (NRM) to confirm their trafficking status. If the victim is an adult and does not agree, the police must complete the duty to notify process (see above). Where the suspect is a child, the police can refer them through the NRM without their consent. If after investigation, there is clear evidence that a defence might apply, the custody officer may decide not to charge.

In all other cases, the CPS will make the decision. In cases referred to the CPS for a charging decision and for which a defence under section 45 could apply, a prosecutor will require proper information to inform a decision on charge and make an assessment on the availability of the defence.

Information and evidence relevant to an assessment of whether a section 45 defence may apply should include any credible evidence to support all the elements of the defence, including:

  • whether the suspect is a victim of trafficking or slavery. This could include a conclusive grounds decision on their trafficking /slavery status under the NRM or, where an adult victim does not consent to being referred into the NRM, any other available evidence of trafficking or slavery.
  • for adult suspects, evidence of compulsion (for further guidance on compulsion see Has the victim been compelled to commit an offence). (Whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.)
  • evidence of relevant characteristics of the suspect. For children, evidence of age; for adults, evidence of age, gender, and any mental or physical illness which will be considered for the reasonable person test (see below).

If there is no such evidence to support the trafficking / slavery status of the suspect or other elements of the statutory defence are not met, prosecutors can still consider the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery to decide whether it is in the public interest to prosecute.

For the offences excluded from the defence in Schedule 4 prosecutors can use their wider discretion in applying the CPS guidance to decide not to prosecute.

Burden and standard of proof

In order to avail himself of a section 45 defence, the defendant will need:

  • to adduce evidence to raise the issue of whether he was a victim of trafficking or slavery. It will then be for the Crown to prove beyond reasonable doubt that he was not a victim, if this is not accepted.
  • for adults, to prove on a balance of probabilities that he was compelled to commit the offence (Whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.); and;
  • for adults, to prove on a balance of probabilities that the compulsion was as a direct consequence of his trafficking or slavery situation; and
  • for adults, to prove on a balance of probabilities that a reasonable person with the same characteristics of the defendant and in the same position would have no realistic alternative but to commit the offence.
  • for children, to prove on the balance of probabilities that a reasonable person in the same situation and with the same characteristics of the defendant, would do that act.

Evidential Stage

If there is a conclusive grounds decision under the NRM that a suspect is a victim of trafficking or slavery; and there is evidence that proves on a balance of probabilities that the other conditions in section 45 are met, relevant to whether the suspect is an adult or child; and the offence is not an excluded offence under schedule 4 of the Act, then no charges should be brought.

If there is no NRM conclusive grounds decision but other available evidence shows that on the balance of probabilities the suspect is a victim; that is, it is more likely than not that they are a victim of trafficking or slavery, this will satisfy the evidential stage of victim status. Where there is a reasonable grounds decision only, prosecutors should make enquiries about when a conclusive decision is likely to be made. If there is to be a delay, then prosecutors can take account of the reasonable grounds decision of the suspect but should additionally consider other evidence and the seriousness of the offence when considering the decision to prosecute.

If the suspect is not a victim of trafficking or slavery, it is immaterial whether he fulfils the other conditions; the defence is not then available.

It is Parliament's intention that all conditions under section 45 be complied with in order to afford a suspect a statutory defence. If any of the conditions are not complied with, the statutory defence is not available. In these circumstances, prosecutors should go on to consider the CPS guidance (below).

Public Interest Stage

Prosecutors must, as with every case, assess the public interest in accordance with the Code for Crown Prosecutors. Information regarding the personal circumstances or characteristics of the suspect may be relevant factors when deciding if a prosecution is required in the public interest. However, it is likely that such factors will already have been considered in the "relevant characteristics" as part of the evidential test of the reasonable person.

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CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery

This part of the guidance will apply:

  • after prosecutors have already considered the statutory defence under section 45 Modern Slavery Act 2015, and it has been rejected;
  • where the criminal offence is excluded from the defence in Schedule 4 Modern Slavery Act or
  • where criminal offences have been committed by a victim of trafficking or slavery before the date on which the statutory defence came into force (31 July 2015).

The guidance applies to victims of trafficking and slavery who are also suspects in a criminal offence. When dealing with cases involving a child, prosecutors must consider the additional requirements set out below in the section Suspects who may be children.

Indicators of trafficking and slavery

Prosecutors should be alert to particular circumstances or situations where someone suspected of committing a criminal offence might also be a victim of trafficking or slavery, e.g. an unaccompanied foreign national child committing offences such as pickpocketing or cultivation of cannabis or in the case of adults, committing offences such as those involving immigration documents, or controlling prostitution (these are examples of offences most frequently committed, not an exhaustive list). Guidance is published to investigators on indicators of trafficking and this may also be of help to prosecutors.

Prosecutor's obligations

When considering whether to proceed with prosecuting a suspect who might be a victim of trafficking or slavery and who has been compelled to commit a criminal offence as a direct consequence of their situation, prosecutors should be aware of the clear obligations imposed upon them.

These obligations arise under:

  • Article 4 of ECHR which prohibits slavery and forced labour.
  • Article 26 of the Council of Europe Anti-Trafficking Convention which requires the United Kingdom to: "... provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so".
  • Article 8 of EU Anti-Trafficking Directive 2011/36/EU whereby "national authorities are entitled not to prosecute or impose penalties on victims of trafficking human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking".

A three-stage approach to the prosecution decision

In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following three stage assessment:

  1. is there a reason to believe that the person is a victim of trafficking or slavery? If so,
  2. if there is clear evidence of a credible common law defence of duress, the case should be discontinued on evidential grounds; but
  3. even where there is no clear evidence of duress, but the offence may have been committed as a result of compulsion arising from the person's trafficking or slavery situation, prosecutors should consider whether the public interest lies in proceeding to prosecute or not. (See the judgment in LM & Ors [2010] EWCA Crim 2327).

The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)

In considering whether a suspect might be a victim of trafficking or slavery, as required in the first stage of the assessment, prosecutors should have regard to the duty of the prosecutor to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery.

The enquiries should be made by:

  • advising the law enforcement agency which investigated the original offence that it must investigate the suspect's trafficking /slavery situation; and
  • advising that the suspect is referred through the NRM for victim identification (if this has not already occurred). All law enforcement officers are able to refer potential victims of trafficking/slavery to the NRM. Referral forms can be found here. Further information concerning the NRM can be found on the Council of Europe Convention on Action against Trafficking in Human Beings.

If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of an NRM decision on their victim status (see below for further explanation).

These steps must be done regardless of what has been advised by the investigator or whether there is an indication of a guilty plea by the suspect's legal representative (see the section "Early guilty plea" below). It should be noted that adults must consent to be referred to the NRM.

Referral to the NRM and NRM decisions

  • Following the NRM referral, the Competent Authority (CA) will first make a "reasonable grounds" decision. In the United Kingdom, the CA is either the Home Office (through a team in UKVI) or the UK Human Trafficking Centre (UKHTC) depending on the victim's immigration status. A positive reasonable grounds decision is made when there are reasonable grounds to believe the individual is a potential victim of human trafficking/slavery. This means 'I suspect but cannot prove' that the individual is a victim. This decision should take 5 days. The potential trafficking/slavery victim will then be eligible for government funded support during a recovery and reflection period for 45 days.
  • During the 45 day period, the CA gathers further information about the victim; and this additional information is used to make a conclusive grounds decision on whether the referred person is a victim of human trafficking/slavery.
  • A conclusive grounds decision is whether, on the balance of probabilities, it is more likely than not that the individual is a victim of human trafficking/slavery.
  • Prosecutors should take account of an NRM decision (reasonable grounds or conclusive grounds) regarding the status, or potential status, of the suspect as a victim of trafficking/slavery when considering the decision to prosecute; however a conclusive decision will carry more weight.
  • Where there is a reasonable grounds decision only, prosecutors should make enquiries about when a conclusive decision is likely to be made. If there is to be a delay, then prosecutors can take account of the reasonable grounds decision of the suspect but should additionally consider other evidence and the seriousness of the offence when considering the decision to prosecute.

Where there is credible evidence of trafficking/slavery (a positive CA decision)

  • Prosecutors should consider whether or not there is clear evidence of a credible common law defence of duress, as required in the second stage of the assessment. If so the case should not be charged / be discontinued on evidential grounds.
  • If not consider whether or not the trafficking/slavery victim was compelled to commit the offence.

Has the victim been compelled to commit an offence?

The following guidance on considering whether a victim has been compelled, as required in the third stage of the assessment, applies to adults only and does not apply to child victims of trafficking/slavery (see the section below "Children and "the means of trafficking"").

"Compulsion" includes all the means of trafficking defined by the United Nations Protocol on Trafficking (The United Nations Convention against Transnational Organised Crime 2000 supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons) :  threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not require physical force or constraint.

In considering whether a trafficking/slavery victim has been compelled to commit a crime, prosecutors should consider whether any of these means has been employed so that the victim has effectively lost the ability to consent to his / her actions or to act with free will.

The means of trafficking/slavery used in an individual case may not be sufficient to give rise to a defence of duress, but will be relevant when considering whether the public interest is met in deciding to prosecute or proceed with a prosecution.

In assessing whether the victim was compelled to commit the offence, prosecutors should consider whether:

  • the offence committed was a direct consequence of, or in the course of trafficking/slavery and whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.

Where a victim has been compelled to commit the offence, but not to a degree where duress is made out, it will generally not be in the public interest to prosecute unless the offence is serious or there are other aggravating factors.

If the defendant is a trafficking/slavery victim but the offence has been committed without reasonable compulsion occasioned by the trafficking/slavery, and there are no particular trafficking/slavery related public interest considerations, then the Full Code Test should be applied in the usual way.

Early guilty plea indicated

Where there is (1) an indication of an early guilty plea, (2) a full investigation has not been carried out and (3) the circumstances are such that there is suspicion of trafficking/slavery: at the first hearing prosecutors should request an adjournment for further investigation and ask that a plea is not formally entered.

Credible evidence of trafficking/slavery post-charge

In cases where a decision has already been taken to charge and prosecute a suspect, but further credible information or evidence comes to light, or the status of a suspect as a possible victim of trafficking/slavery is raised post-conviction, for example in mitigation or through a pre-sentence report, then prosecutors should seek an adjournment and ensure that the steps outlined in the section "The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)" above are carried out.

Suspects who may be children - Additional requirements

Assessing age and trafficking/slavery status

In cases where the defendant may be a child victim of trafficking/slavery, two linked questions must be addressed:

  1. what is the defendant's age?
  2. what evidence is there to suggest that the defendant is a victim of trafficking/slavery?

If the defendant is a child victim of trafficking/slavery, the extent to which the crime alleged against the child was consequent on and integral to his / her being a victim of trafficking / slavery must be considered. In some cases the criminal offence is a manifestation of the exploitation. This might also arise in the case of an adult victim: see paragraph 20 of L, HVN, THN and T [2013] EWCA Crim 991.

Due Inquiry as to age

Section 99(1) of the Children and Young Persons Act 1933 directs the court to "make due inquiry" about the defendant's age and "take such evidence as may be forthcoming at the hearing of the case" for this purpose. Similar provisions require the court addressing the age question to consider "any available evidence" (Section150 of the Magistrates Court Act 1980; Section 1(6) of the Criminal Justice Act 1982; and Section 305(2) of the Criminal Justice Act 2003).

Where any issue as to the age of a defendant arises, it must be addressed at the first court appearance. The documentation accompanying the defendant to court should record his date of birth, whether as asserted by him, or as best known to the prosecution, or indeed both.

If age becomes or remains an issue at the Plea and Case Management Hearing in court, prosecutors should ensure that the appropriate age-assessment enquiries are carried out. This may require a request for an adjournment to the court.

Prosecutors should consider the separate CPS guidance concerning age assessment. See paragraphs 31 and 32 of L, HVN, THN and T [2013] EWCA Crim 991.

Presumption that a victim is a child

Article 10(3) of the Council of Europe Anti-Trafficking Convention provides: "When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall presume to be a child and shall be accorded special protection measures pending verification of his/her age". If at the end of a "due inquiry" into age the age of the defendant remains in doubt s/he must be treated as a child. See paragraph 25 of L, HVN, THN and T [2013] EWCA Crim 991. Section 51 Modern Slavery Act 2015 enshrines this in legislation.

Referring children through the NRM

In the case of suspects who are (or appear to be) children, the NRM referral should be made through the relevant social services department.

Children and "the means of trafficking"

In determining whether a child is a victim of trafficking/slavery, his or her consent to being trafficked or held in slavery is irrelevant and the means by which they are trafficked/held in slavery is also irrelevant. Therefore it is not necessary for any of the following to be present: threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability or use of debt bondage.

When considering whether to prosecute a child victim of trafficking/slavery, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking/slavery.

Guidance has been issued to police and Immigration authorities on identification of victims and the indicators that might suggest that someone is a trafficking/slavery victim. However, all decisions in the case remain the responsibility of the prosecutor.

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